Citation Nr: 0332135
Decision Date: 11/19/03 Archive Date: 11/25/03
DOCKET NO. 97-24 632 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for a nervous condition.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
E. Ward, Associate Counsel
INTRODUCTION
The veteran had active duty from August 1954 to May 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia, that denied the veteran's application to
reopen a claim of entitlement to service connection for a
nervous condition.
REMAND
The record reflects that an original claim of entitlement to
service connection for a nervous condition was denied by
Board decision in February 1980. Subsequent petitions to
reopen the claim were denied by the Board in March 1982, and
February 1991. The veteran did not appeal the 1991 decision.
By a November 1995 rating decision the RO denied a petition
to reopen the claim of entitlement to service connection for
a nervous condition, and also denied a claim of entitlement
to special monthly pension.
In a VA Form 9 substantive appeal dated in May 1997, the
veteran requested a hearing before the Board. In a VA Form
21-4138 dated in June 1999, he requested that the hearing be
changed to an informal hearing at the RO, then in October
1999, notified the RO that he would not attend the scheduled
hearing. However, in a VA Form 21-4138 dated in October 2001
relating to his claim for service connection for a nervous
condition, he inquired whether counsel will be present to
represent him "at my hearing?" Clarification is required
as to whether the veteran now desires a hearing.
During the pendency of this claim, the Veterans' Claims
Assistance Act of 2000 (VCAA) was signed into law. This
legislation is codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2003). It essentially
eliminates the requirement that a claimant submit evidence of
a well-grounded claim, and provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim, but is not required to provide assistance to a
claimant if there is no reasonable possibility that such
assistance would aid in substantiating the claim. It also
includes new notification provisions. Specifically, it
requires VA to notify the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the Secretary
that is necessary to substantiate the claim. As part of the
notice, VA is to specifically inform the claimant of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
Regulations implementing the VCAA are now published at
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326) (West 2003).
Except as specifically noted, the new regulations are
effective November 9, 2000. It is noted that the provisions
of 38 C.F.R. § 3.156(a) were amended effective August 29,
2001. These amendments are effective only on claims received
on or after August 29, 2001, and are inapplicable in the
instant case. See 66 Fed. Reg. 45620-45632 (August 29, 2001).
In an October 2001 VA Form 21-4138, the veteran raised
questions pertaining to new and material evidence to reopen
the claim. Although a VCAA letter dated in August 2001 was
provided in relation to several of the veteran's claims, none
was provided in relation to the petition to reopen the claim
for a nervous condition. In a statement of the case,
supplemental statement of the case, and other correspondence,
the veteran was advised of the law governing new and material
evidence required to reopen the claim. He was not advised of
any information, and any medical or lay evidence not
previously provided to the Secretary, necessary to
substantiate his claim to reopen. As part of the VCAA
notice, VA is to specifically inform the claimant of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. The RO should issue a VCAA letter,
and must take this opportunity to inform the appellant that a
full year is allowed to respond to a VCAA notice.
Accordingly, the case is REMANDED to the regional office (RO)
for the following:
1. The RO should clarify the
veteran's hearing request and if
necessary, the veteran should be
scheduled for a "Travel Board"
hearing following
the usual procedures under
38 U.S.C.A. § 7107 (West 2003) and
38 C.F.R. § 20.704 (2003), if
necessary.
2. The RO should review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A, (West 2003), as
well as with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, and
any other applicable legal
precedent.
3. After readjudication, if the
benefit sought on appeal is denied,
the case should be returned to the
Board following the usual appellate
procedures. The appellant need take
no action unless otherwise notified.
The appellant has the right to submit additional evidence
and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).